A courtroom sketch shows defendants Azamat Tazhayakov, left, and Dias Kadyrbayev during a hearing in federal court May 13 in Boston. / Jane Flavell Collins, AP
BOSTON - FBI Special Agent John Walker returned to the witness stand for the second day of pre-trial hearings focusing on the statements given to police by friends of Boston Marathon bombing suspect Dzhokhar Tsarnaev during the manhunt that gripped the nation.
Attorney Robert Stahl, representing Dias Kadyrbayev, continued his questioning of Walker about how agents engaged Kadyrbayev and Azamat Tazhayakov in the April 19 siege of their New Bedford apartment.
Stahl, who's arguing that initial statements made by Kadyrbayev should not be included as evidence at his trial, established that Kadyrbayev was handcuffed with no shirt and led past SWAT team members in fatigues carrying semi-automatic weapons to an unmarked vehicle.
"It was no doubt a very traumatic moment for these individuals?" Stahl asked.
"Let's just get the facts," interjected federaly Judge Douglas Woodlock, who had reminded Stahl that there is no jury to influence at the hearing.
Walker testified that Kadyrbayev agreed to be questioned at State Police offices, but was brought back to the apartment a few minutes later. Walker said the defendant then signed a consent form authorizing law enforcement to search his apartment.
Walker, in testimony Tuesday, explained that FBI access to the cellphone records of alleged Boston Marathon bomber Dzhokhar Tsarnaev led to the massive 60-officer siege and the arrests of Kadyrbayev, Tazhayakov and another college student, all accused of interfering with the investigation.
Four days after the April 15, 2013, bombings, Tsarnaev, 20, was wanted and remained at large. It was a few hours after a shootout with police that left Tamerlan Tsarnaev, 26, dead and his brother on the run. It was a few hours before Dzhokhar Tsarnaev would be caught in Watertown.
Tsarnaev was receiving AT&T bills for multiple phones at his friends' apartment. One of the phones had called Russia from near the UMass-Dartmouth campus, sending .
What happened next could affect the outcome of the cases against Tsarnaev's friends. Walker said the FBI had not obtained a search warrant. Agents took the two men from the apartment, handcuffed them and questioned them in unmarked cars, Walker said, before they agreed to go to the State Police barracks for further questioning.
Walker said that at the time, Tsarnaev was still at large and was believed to be "an enormous threat" who most likely wasn't acting alone. He said Kadyrbayev signed his written consent before agents searched the home for clues.
Some of Wednesday's questioning focused on treatment Kadyrbayev and Tazhayakov received after they finished answering questions at the barracks. When questioned, they had described activity that might warrant obstruction of justice charges, Walker said. The question for the FBI was what to do next.
The defendants "did not say, 'Can we leave now?' or 'We want to go now'," Walker said.
Agents decided to let them sleep a while in a conference room. Walker and his team meanwhile searched a New Bedford dumpster between 1 and 4 a.m. while the U.S. Attorneys' Office considered whether agents had probable cause to arrest them.
The defendants accepted a ride home after Kadyrbayev woke up sometime around 4 a.m., according to Walker, and said: "I'm beginning to think we're being held here against our will."
A second FBI agent took the stand after Walker. Special Agent Farbod Azad, a member of the Joint Terrorism Task Force in New York, told how he assisted with the questioning of Tazayakov and Kadyrbyev on April 19.
Azad discussed consent forms that Kadyrbayev signed. Prosecutors supplied them as exhibits to show that the defendant was voluntarily cooperating.
"It was completely voluntary," Azad said. "It was up to him if he wanted to speak to us."
During Azad's testimony, Stahl noted that for Kadyrbayev, English is a third language. His primary language is Russian and his second language is Kazakh. Azad said Kadyrbayev indicated that he understood the questions he was asked to answer, but at times had difficulty finding the right words
According to the indictment, Kadyrbayev and Tazhayakov tried to protect their friend Tsarnaev by removing from his dorm room a laptop computer and a backpack containing fireworks that had been emptied of their explosive powder. Tsarnaev reportedly called them with the request in the hours after the marathon explosions. Another friend, Robel Phillipos is charged with lying to investigators.
The hearing began Tuesday with a significant venue ruling - Woodlock said he will most likely keep the trial in Boston. Still, the judge said he'll have prospective jury pools ready to go in Springfield, Mass., just in case "a fair and impartial" jury proves impossible during jury selection in Boston.
Woodlock ordered Tazhayakov to stand trial June 30, Kadyrbayev on Sept. 8 and Phillipos on Sept. 29.
If convicted, Kadyrbayev and Tazhayakov could each face as much as 25 years in prison. Phillipos could receive as much as eight years in prison and a $250,000 fine.
Dzhokhar Tsarnaev is awaiting trial.
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